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Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

Saint Paul Lawyer
 
 mdouglas@injurylawstpaul.com

 

UNPUBLISHED CIVIL OPINIONS FROM THE MINNESOTA COURT OF APPEALS

Dominick Ostapenko,
Relator,

vs.

Department of Employment and Economic Development,
Respondent.

TOUSSAINT, Chief Judge
Relator Dominick Ostapenko petitions for review of the determination of
a senior unemployment review judge (SURJ) that Ostapenko's training
program was not a qualified Trade-Adjustment-Assistance Program.
Because we conclude that the evidence supports the SURJ's conclusion
that the program's costs were unreasonable, we affirm.

= = ==

A05-2058


E & I Specialists, Inc.,
Appellant,

and

The Hartford Steam Boiler Inspection and Insurance Company,
Intervenor,

vs.

Corn Plus Cooperative,
Defendant,

Delta-T Corporation,
Respondent,

Commonwealth Electric of Minnesota, Inc.,
Respondent,

Paulson & Clark Engineering, Inc.,
Respondent,

DeWar Electric, Inc.,
Respondent.

LANSING, Judge
In this multiparty litigation arising from three electrical
failures in a newly constructed expansion of an ethanol plant, the
electrical-equipment installer asserts contribution-and-indemnity claims
against an electrical company and its subcontractor, who performed
engineering and design services. The district court dismissed these
claims on motions for summary judgment, concluding that the design
professionals were absolved from common liability because the installer
deviated from design directions. Because genuine issues of material
fact remain on whether the installer impermissibly deviated from the
design, whether the system as designed was safe and suitable, and
whether any alleged design deviation caused the electrical failure, we
reverse and remand.

= = = =

A05-2529


In the Matter of the Welfare of the Child of:
G.F. and J.S.-M.,
Parents.

LANSING, Judge
GF and JS-M appeal from the termination of their parental
rights. GF asserts that the district court erred by determining that
she failed to rebut a presumption of palpable unfitness arising from
previous involuntary terminations. JS-M argues that service was
defective and that the court erred by terminating his rights based on a
ground not alleged in the petition. We affirm the district court's
termination of GF's parental rights because she failed to present
affirmative evidence of her ability to parent. We also affirm the
court's exercise of jurisdiction over JS-M because he waived service.
We reverse and remand, however, the termination of JS-M's parental
rights because it is based on a ground not alleged in the petition.

= = = =

A06-143

In the Matter of the Welfare of the Child of: L. J. R., Parent.

KALITOWSKI, Judge
Appellant L.J.R. challenges the district court's termination
of her parental rights to her son, J.R., arguing that the record does
not support the district court's determination that (1) the county made
reasonable effort at reunification and rehabilitation; (2) appellant has
substantially, continually, and repeatedly refused to comply with her
parental duties; (3) appellant is palpably unfit to parent; (4) the
child is neglected and in foster care; and (5) termination of
appellant's parental rights is in the child's best interests. We
affirm.

= = = =

A05-1871

Lillie McJimsey,
Relator,

vs.

Dolphin Industrial Staffing,
Respondent,

Department of Employment and Economic Development,
Respondent.

HALBROOKS, Judge
Relator challenges the senior unemployment-review judge's
decision that she is disqualified from receiving unemployment benefits.
Relator argues that she should not have been deemed to have quit her
employment because under Minn. Stat. ? 268.095, subd. 2(d) (2004), the
job assignment was not suitable for her, and she did not complete it.
Because there is no evidence in the record to conclude that the job was
suitable and completed, we reverse.

= = = =

A05-2345


Citibank (South Dakota) N.A.,
Respondent,

vs.

Kermit J. Erickson,
defendant and third party plaintiff,
Appellant,

vs.

Betty Marie Erickson,
third party defendant,
Respondent.


HALBROOKS, Judge
On appeal from the district court's dismissal of
respondent's action to recover credit-card debt from appellant,
appellant argues that the district court erred in denying his earlier
motion to strike under Minn. R. Civ. P. 12.06 and in dismissing the case
without awarding costs pursuant to Minn. Stat. ? 549.04 (2004). Because
respondent had a sufficient evidentiary basis for its claims and because
appellant never requested costs in the district court, we affirm.
Appellant moved this court to strike portions of respondent's brief and
appendix; that motion is granted in part and denied in part.

= = = =

A05-2240


In the Matter of the Civil Commitment of
Michael Kenneth Stringer.



HALBROOKS, Judge
Appellant challenges the district court's indeterminate
civil-commitment order on the grounds that (1) he does not meet the
statutory criteria for civil commitment as a sexually dangerous person;
(2) civil commitment violates his rights to due process, equal
protection, and a jury trial, and his right against double jeopardy; and
(3) the civil-commitment statute is unconstitutionally vague. We
affirm.

= = = =

A05-1860

Ellen Feuling, et al.,
Appellants,

vs.

The City of Plymouth,
Respondent,

Bonestroo, Rosene, Anderlik & Associates, et al.,
Defendants.

MINGE, Judge

Appellants challenge the dismissal of their claims arguing
that the doctrine of discretionary immunity and the statutes of
limitations and repose in Minn. Stat. ? 541.051 (2004) do not bar their
claims. We affirm.

= = = =

A05-2426

In the Matter of the Welfare of the Children
of: D. B., Parent.

MINGE, Judge
On appeal from the termination of her parental rights,
appellant-mother argues that (a) Minn. Stat. ? 260C.201, subd.
11(d)(3)(i) (Supp. 2005) does not apply to this case; (b) Minn. Stat. ?
260C.201, subd. 11(d)(3)(i) (Supp. 2005) violates the constitutional
separation of powers and the court's inherent authority to act in the
best interests of children; and (c) termination of mother's parental
rights is not in the children's best interests. Because the record
supports the district court's determinations regarding the termination
of mother's parental rights, we affirm the termination. Because the
district court based its refusal to put the children in long-term foster
care on the children's best interests, rather than limits on court
discretion imposed by Minn. Stat. ? 260C.201, subd. 11(d)(3)(i), we do
not decide whether the 2004 or 2005 version of the statute applies here.
Nor do we decide whether the statute violates the constitutional
separation of powers.

= = = =

A06-267

In the Matter of the Civil Commitment of:
Donald C. Bostic


WRIGHT, Judge

Appellant challenges his involuntary recommitment as a mentally ill
person under Minn. Stat. ? 253B.13, subd. 1 (2004), arguing that (1)
recommitment requires proof of recent behavior indicating a risk of harm
to oneself or others; (2) serial recommitments without proof of recent
behavior demonstrating danger to oneself or others violate due process;
and (3) the district court improperly rejected voluntary case management
as a less-restrictive alternative. We affirm.

= = = = =

A05-1957

In re the Marriage of:
Steven Thomas Hennek,
Petitioner/Appellant,

v.

Margaret Giles Hennek
n/k/a Margaret Frances Giles,
Respondent.

ROSS, Judge
Appellant-father Steven Thomas Hennek challenges the district court's
order directing that E.H., the child of Hennek and respondent-mother
Margaret Frances Giles, attend school in Giles's district of residence
rather than Hennek's. Because the district court's findings are
inadequate to permit appellate review of its decision, we reverse and
remand for particularized findings.

= = = =

A05-1749

William Edward Bieloh, et al.,
Appellants,

vs.

First National Insurance Services,
Respondent.

ROSS, Judge

This case arises from a head-on automobile collision between a vehicle
stolen from the "Moondance Jam" music festival and a vehicle heading to
that festival. In this appeal from summary judgment on negligence and
breach of contract claims, appellants argue that the district court
erred by ruling that a Miller-Shugart agreement shields appellants from
liability and prevents them, as a matter of law, from being able prove
damages. Because we conclude that the district court's decision that
appellants cannot prove damages is based on an incorrect measure of
damages, we reverse and remand.

= = = =

A05-1896

Daniel J. Van Hee,
Relator,

vs.

Dominium Management Services, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent

PARKER, Judge
Relator Daniel Van Hee challenges the decision by the
unemployment-law judge (ULJ) denying a motion for reconsideration after
determination that relator was disqualified from receiving unemployment
benefits because he had been discharged for employment misconduct
relating to the waiver of penalty fees for early lease termination. Van
Hee argues that he did not commit misconduct because (a) he had
authority to balance initiatives to maintain high occupancy against
charging penalty fees, (b) the employer did not object to his practice
of waiving penalty fees over a period of four years, during which he
consistently received positive performance reviews, and (c) his acts, at
most, constituted good-faith errors in judgment not constituting
misconduct. Because we conclude that the evidence does not reasonably
support a determination that Van Hee was discharged for employment
misconduct, we reverse.

= = = =

A05-2486

Joseph J. Oliver,
Relator,

vs.

Sather Trucking Company, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

PARKER, Judge
Relator challenges the senior unemployment review judge's
(SURJ) determination that he quit his employment with respondent without
good reason caused by his employer. Because the SURJ's findings are
based in the record and support the conclusion that relator is
disqualified from receiving unemployment benefits, we affirm.
 

 
 
 

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